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146 T HI LJADE B>. [No. 462, Janttaiiy 2...
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SCOTT w, DIXON. The rule for a new trial...
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n.a umrnc Awn eTmrnjomTnw Xxi.OUwJH.XS, JFACTp, As* JJ SUGGESTIONS
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Note: This text has been automatically extracted via Optical Character Recognition (OCR) software. The text has not been manually corrected and should not be relied on to be an accurate representation of the item.
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Code Of Bankruptcy. Tne Opinion That Lor...
creditors to be xnade the most of for them and divided amongst them proratat and that the commissioner j or court , or assignee , or . Whatever , name the . officer may bear who presides over the distribution ,. should give or withhold from the insolvent a certificate , or testimony , according to his . individual merit or . demerit ^ not according to some prefixed , invariable , and therefore essentially unjust classication . This is substantially what is now aimed at by our eode , and an insolvent or a bankrupt walks out of court , branded as wholly untrustworthy or as merely unfortunate , and" -likely to be made prudent lay losses and suffering . There is , however , a great difference in . opinion « s to how this principle , on which all seem to be in accordshould be carried out , and who should be
, the agent or legal official to administer the law . Of course the profession jump at once to the conclusion that judges , commissioners , solicitors , & c . & c ., must be employed , and all the usual paraphernalia « of a court of law must be called into existence to distribute a little property , and say whether an insolvent be trustworthy or not . It is found , however , in practice that this plan , hitherto pursued , defeats the object in view . There is no known method of forcing creditors to carry their -claims before a court , and the average cost of car ^ eying an estate through the Bankruptcy Court being now upwardsof S 7 per ceut ., they prefer to settle the matter amongst themselves , and appoint one or two of their own number to wind up the bankrupt
-estate . Many insolvencies do not , in consequence , oome under public notice . Many insolvents appear before the world to be wealthy , frauds are perpetx * atedi confidence is diminished , _ the profit of business is . lessened , and the morality of trade is "¦ decried .- A vehement appeal is now made to the public by the profession and the press to amend these proceedings ; secrecy is denounced , and in-¦ creased ^ publicity demanded for ; every ease of insolvency . In spite of the practical difficulty of forcing 1 creditors into bankruptcy , which Mr . Commissioner -Fane proposes to remedy by allowing a jingle creditor this power , whatever the rest may : resolve ; the mode of proceed ing hitherto in use and recommended by the profession seems most in favour , and is the mode which the Chancellor , the judges , and probably the Legislature , will adopt .
an insolvency code , superior to any yet devised , should not be carried out with success . ^ Unfortunately , the mercantile classes , from timidity and habit , will leave the legislation in the hands of the profession , and they will most likely be again deceived . The principal object being the collection and distribution of an insolvent ' s property , and , subordinate to this , the establishment of the insolvent ' s trustworthiness or otherwise , we do not think it possible , as has been suggested , to separate the one frOm the other . The proof of every debt generally carries with it a justification or condemnation of the conduct of the debtor ! . One inquiry
necessarily elucidates both . So far as his trustworthiness and his resumption of business is concerned , the verdict should be pronounced , or the certificate given , as now ,, by the parties who administer his effects . Between meriting confidence , or otherwise , and the commission of offences punishable by law , there is a great difference , recognised throughout our lives , aiid while the parties who administer an insolvent estate can de ^ cide whether he be mercantilely trustworthy or otherwise , only a court of law , in which a man is
surrounded by all the safeguards of a jury and a careful judge , should pronounce him innocent or guilty of an offence that would subject him to punishment . To take credit or incur debt is not a crime , and we cannot consider the examination w hich it may make necessary into character as analogous to a criminal proceeding . We do _ not agree with those , who would remove the investigation of an insolvent ' s conduct , so far as it refers to the confidence he may deserve from the parties to ¦ whom s entrusted the administration of his property .
The mercantile classes , however , or the creditors , desire to keep the property of insolvents in their own hands and under their own control . They complain justly of the enormous expense and delay of proceedings in bankruptcy , and have learned from experience that they can , in a great majority of cases , procure a fair distribution of an insolvent's estate in a shorter time aud in a more profitable manner than by appealing to a court . They therefore want such a method to be legally established , « nd want a code to be administered by themselves , 4 U 1 U \ iauu a uuuc iu ug auuuuiatgi & u ujr uu >/ moviTuj ,
or mercantile men , instead of by the' profession . In consequence , however , of the complicated con-. dition of our property and commercial laws , they find , themselves in a difficulty , and as they cannot now wind up an estate without the help of solicitors , mo now mode of administering a bankruptcy law could enable them to dispense with the services of the profession . To attain their ends , there must be not merely an improved method of administering the insolvency laws , there must be a great simplification , notnpw to be obtained , of our property and comjneroial laws .
v What stands most in the way of the mercantile classes is the opinion that an investigation before a < courfc of law is necessary to secure publicity , and without this , much injustice will surely be done , and much fraud varnished over or concealed . They must therefore find some method by which publicity may be more surely given to any case of insolvency and improper conduct than is even now provided by courts of law . At present , cases aire sometimes kept out of the public journals , and detected swindlers arc allowed to continue their nefarious career . JSfo doubt mercantile man already adopt a means of collecting an insolvent ' s property
-arid distributing it , but thoy want to do this under the authority or the law , and they must have the public present as a witness to thoir conduct . AH the real work they can do effectually themselves , ibut they require a responsible and independent individual to see thai they do no injustice ; and the public requives—especiall y the mercantile public , beyond the circle of eaoh body of creditorsthat the oharaotej . - of every insolvent should be . known . Now , however , that the principle is Acknowledged , and what is wanted is clearly seen , it would be discreditable to all the lewcUpg classes , if
146 T Hi Ljade B>. [No. 462, Janttaiiy 2...
146 T HI LJADE B > . [ No . 462 , Janttaiiy 29 ^ 1859 ^
Scott W, Dixon. The Rule For A New Trial...
SCOTT w , DIXON . The rule for a new trial in the case of Scott and another v . Dixon , was argued before the Lord Chief Justice and a full bench of judges on Thursday , and the result was that the four judges were of opinion that the Liverpool verdict was ; " right and ought not to be disturbed . " We hone we do not fail in any proper respect for the judicial office , when we say we cannot concur in the wisdom or fitness of this decision . Judges are but men- —they are fallible as men ; they are not perfect even as judges ; they may come to a wrong conclusion , and even be , k _ _ ~ 1 . ^—J <^_ ^ . I « W 4 * a a . « a ^» - > * m «^ I * _ w « x *^ v m- % a nil / I t ^ 1 f \ 1 l \ I Vi guided to that conclusion b iinsound principle
^ _ * ^* ^ ** *^ ** y an of law * For these reasons we hope we may be pardoned for differing with the Bench in their Iinal judgment . . The question was not so much a legal question as a commercial question . Legal minds , we have long been persuaded , are not the best constituted for the consideration and decision of commercial matters . Common sense and real ; business experience are often the very best guides where difficulties have arisen out of commercial transactions . In the case of Mr . ScOtt we reaffirm that he was not , and could not have been , led into the purchase
of his shares in the Liverpool Bank by anything said , done , or printed by Mr . Dixon . If he were indeed misled , ' . it was by the acts of other parties , certainly not by an individual , whose whole connexion with the bank was distinguished by a desire to retrieve its fulling fortunes at the expense of his time and his money ! Mr . Dixon may bo suro that the words of Lord Chief Justice Campbell will find a response in every " well-regulated mind" that he is an honourable man , and that no stigma can attach to him for his part in the affairs of tho bank .
N.A Umrnc Awn Etmrnjomtnw Xxi.Ouwjh.Xs, Jfactp, As* Jj Suggestions
spreading tree of usurpation , whose liistory , character , and . condemnation arc all summed tip in one plain word , namely , . thi . it it is ' not . f-hc truth but a lie . It is not true that the nominee of "his Grace , " or the eldest son of " my Lord , " who owns two-thirds of this or the other Parliamentary village , . ' . the lawfully chosen representative of any portion of the Commons , in what is called their House at Westminster . A very fine gentleman he may be , very accomplished , refined , and exquisite in . look , voice , and bearing ; and , in the opinion of his ' 'family , . his regiment , or his club , a deuced good fellow . But
one thing he is not—and that is the tiling lie affects to be —a duly elected member of Parliament . And so , in like manner , as regards classes . Good and wise men may differ as to the Tnost complete way of giving each great class its fitting sh-are ' ni the national judgment ; but no honest man dan look you in the face and say that the " hard-workcrs " of the community , as they have well been called , either adequately or inadequately , participate now in the business of choosing delegates to the law-making and tax-levying assembly about to assemble at Westminster .
That something is certain to be done towards putting an end to our system of unrealities , and bringing the Constitution back to trul-h aiid fact , there seems little to doubt . When a system , however , has been suffered long to dwell in the shadow of falsehood , every part of it , even that which seems the soundest , aiid healthiest , loses'the colour of truth , and needs exposure to the light ami air in order that it may be restored to its natural purity and vigour . Two notable abuses-, much" needing reformation may be stated under the gnural terin of non-residence . A country is called ou to select a
proper person to appear on its bchalt m ; the great council of the nation . Why ? Because in national measures it is needful to know as nearly as . possible what the sentiments of each locality arc on the questions of the day . The . electors of the county meet and vote as " they please as bei . \ veeii rival candidates , and whatever their choice , if it _ be free , it is a true one . But "what if instead of being suffered to settle the point among ' themselves , scores of strangers are brought by rail from rcmot c pads of the kingdom to turn a wavering balance , or to deter , by their ; numbers and the cost of bringing
them thither , fair opposition to some wealthy or prodigal candidate ? let this , as we all know , is what is done every clay . The cost of bringing . nou-rt'sident voters froin various parts of the kingdom is .-made the pretence for keeping up the machinery of corruption in counties under the name of legilimatc travelling expenses . If we had only the question to deal with of convevaucc of voters from one pavt of the county to another , this fertile source ot \ excessive , expenditure inight be dried up more easily . But every provision that can be suggested in the way of multiplied polling . places is met by the
answer , What do you mean to do with the case of a man who comes one . hundred and fifty miles to vote ? Were there no othor reason for putting jvu end to the system of out-voters , as they arc termed , the need of healing this running sore m the constitution would be a sufficient one , . Out-voters arc bad enough , but there is something more intolerable stillj and that is out-mcMbers . When a man undertakes to perform the fund ion of a member of Parliament , onq would suppose llmfc about tho simplest and ' dearest ' of'his duties would bo to attend the llouso of which he forms u part .
If casual illness or tho pressure of private allairs withdraws' him wow and then from attendance , one would suppose that ho would , at all events , watch from no great distance all that was goini ^ on in Ins absonco , and hasten to rejoin his comrades at tho earliest possible-moment . Occasional absences are , perhaps , unavoidable ; hut , when they aro nut protracted to any great length , a man of ordinary mtclloct keeps up tlio thread of continuity during w > o interval , or picks it up when lie has dropped it after his fortnight or three weeks out ol town . But what are wo t , o think of tho worlliies who ,
THOUGHTS , TACTS , AND SUGGESTIONS ON PARLIAMENTARY REFORM . No , XII , What is the dofoot complained of in our existing system of representation P Its unreality , as regards numerous localities and groat classes of the community . And what ia the one substantial and aU-sufiioicnt plea for Reform P That thoroby we hope to got rid of those sham memborshfps and paptiol privileges which are inconsistent with anything worthy the name of a full , equal , and real representation of the people . Ilotbrm , if it bo genuine , will bo , to whatever extent it is earned , a return to reality , and an abrogation of obsolete and misohiovous notions , No simpler or better tost oan be applied to tho provisions of the various bills about to oe brought before tho Legislature . Do thoy go to uproot or 1 , 0 lop off tho boughs of that
wideretaining tho rank and distinction of JU . 1 ' ., not only go out of town , but out ; of the kingdom , und not only for a few weeks , but for many niuntlm toother , and , generally speaking , witnoutf oven liuviug the oxousq to plead ot' ill health or domoHtio bolwitudoP We do not wish unnooosbarily to mention ' namds . It is , howovor , notonouM thatainonff Wo aristoomtio members of the House of Coininons there aro always to bo found many indiviilnuls who have no { scruple wlmtovor in quilting England on foreign servioo , or for ibroigu trnvol , and loaving the business of tho country during tho six or twelve
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Citation
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Leader (1850-1860), Jan. 29, 1859, page 18, in the Nineteenth-Century Serials Edition (2008; 2018) ncse2.kdl.kcl.ac.uk/periodicals/l/issues/cld_29011859/page/18/
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